"Although the Court will as far as possible give effect to a plaintiff's choice to claim
specific performance, has a discretion in a fitting case to refuse to decree specific
performance and leave the plaintiff to claim and prove his id quod interest."

There are no rules governing the exercise of the discretion. However, the discretion is not
completely unfettered. It remains a judicial discretion that may not be exercised
capriciously or upon wrong principle. It is aimed at preventing an injustice. The basic
principle is that the order which the Court makes should not produce an unjust result
which will be the case for instance, if in the particular circumstances, the order will operate
unduly harshly on the defendant. Other relevant considerations may be legal and public
policy or impossibility.

It appears therefore that neither under the CISG nor under South African law can it be said with
certainty that the party will be entitled to specific performance under all circumstances.
Although the point of departure of the CISG is that a party is entitled to specific
performance, this may be negated by the provisions of article 28 which refers this question
to the particular Court which would be hearing the case in question. The flexibility
provided by South African law is under these circumstances to be preferred to the
uncertainty caused by section 28 of the CISG.

The general right to specific performance is augmented in article 46 by two more specific
provisions which deal with the right to require substitute goods or repair of the goods.
Both of these instances deal with situations where there has been performance in fact, but
where the performance does not conform with the provisions and requirements of the
contract.

In terms of article 46(2) if the goods do not conform with the contract, the buyer may require
delivery of substitute goods if the following two requirements are met: Only if the lack of
conformity constitutes a fundamental breach of contract; and the request for substitute
goods is made in conjunction with the notice given under article 39 or within a reasonable
time thereafter. Article 39 requires the buyer to give notice to the seller of the non-conformity of the performance within a reasonable time after he has discovered or ought
to have discovered the lack of conformity.

In terms of article 46(3) if the goods do not conform with the contract, the buyer is entitled to
require the seller to remedy the lack of conformity by repair, provided that:

(a) The requirement to make repair is not unreasonable having regard to all the
circumstances; and

(b) The request for repair was made in conjunction with the notice given under article
39 or within a reasonable time thereafter.

Under South African law, the duty to deliver substitute performance or to repair the goods in
question, is subsumed under the general order for specific performance. An order for
specific performance can therefore comprise any of the following orders, namely:

(a) An order for the delivery of the goods where the goods have not been delivered
or for the balance of the goods where there has only been a part delivery of the
goods;

(b) Delivery of substituted goods where the goods delivered do not comply and cannot
effectively be repaired;

(c) For the repair of the goods where the repair will place the goods in the state that
they should have been according to the terms of the contract.

In terms of article 47 of the CISG, the buyer where he is insisting on specific performance, may
fix an additional period of time of reasonable length for performance by the seller of its
obligations. If the buyer has fixed an additional period of grace such as this, it may not
exercise any of its other remedies under the Convention. However, the buyer is not
deprived thereby of any right he may have to claim damages for delay in performance.

Although the authorities in South African law do not specifically deal with the right of the buyer
to extend a period of grace to the seller where the latter is in default, there is nothing
which would prevent a buyer from extending such a period of grace. In such an instance
the buyer would be prevented by the rules of estoppel from exercising any of its other
contractual remedies during the period of grace.

In terms of article 48 the seller may, even after the date delivery, remedy at his own expense any
failure to perform its obligations, if it can do so without unreasonable delay and without
causing the buyer unreasonable inconvenience or uncertainty of reimbursement by the
seller of expenses advanced by the buyer. The seller may also request the buyer to make
known whether he will accept performance and if the buyer does not comply with the
request within a reasonable period of time, the seller may perform within the time indicated
in its request. The buyer may not, during that period of time, resort to any remedy which
is inconsistent with performance by the seller. This right to cure a breach of contract, is
however subject to the rights of the buyer to avoid or cancel the contract in terms of article
49 of the CISG. Thus, where the buyer is entitled to forthwith avoid the contract, he may
do so even if the seller is willing to cure the breach complained of.

Under South African law there is no specific right available to the seller to cure any defect in the
performance it has rendered. However, if the seller is able to cure its breach before the
buyer has exercised any right to cancel the contract, and such cure effects full
performance, then the buyer would normally not be entitled to cancel the contract. This
will, however, not affect any rights the buyer may have in respect of a claim of damages
due to incomplete or late performance.

In the event of late performance, the innocent party may only cancel the contract under the
following circumstances:

Where the contract contains a lex commissoria, that is, a clause entitling the buyer to cancel
the contract immediately upon non performance on the specified date; or

Where the buyer has informed the seller that if the seller should not perform by a specific date
in the future, the buyer intends cancelling the contract. The period of time stipulated in this
notice must be a reasonable period of time under the circumstances; or

If time is of the essence in the particular circumstances. The particular circumstances
attendant upon the contract in question will determine whether time will be regarded as of the
essence. However, this will only be done in exceptional circumstances and the buyer under
these circumstances has a difficult onus to acquit.

The right to avoid the agreement is further restricted in the CISG in article 49(2) which provides
that in the case where the seller has delivered the goods, the buyer loses the right to
declare the contract avoided unless he does so within a reasonable period of time after he
has become aware that late delivery has been made; or in respect of any other breach other
than late delivery within a reasonable time after he knew or ought to have known of the
breach. If the seller has been afforded extra time to perform in terms of article 47 or 48,
the buyer may not avoid the contract before that extra period of time has elapsed.